RUSH TRANSCRIPT: FEBRUARY 10TH ZOOM CONFERENCE CALL BETWEEN

MEMBERS OF GOVERNOR CUOMO'S ADMINISTRATION AND NEW YORK STATE

LEGISLATORS
 
 
Below is a rush transcript of the Zoom conference call between members of Governor
Cuomo's administration and New York State legislators that took place on February
10th, 2021:
 
Dana Carotenuto: Hey, everybody. Sorry for the delay. Hi Assemblyman Kim,
Assemblyman Gottfried, Assemblyman McDonald, Senator May, Senator Rivera,
Senator Skoufis. I know the Leader is joining a little bit later. Shontell, David. I think I got
everybody, right? Can everybody hear me? Thumbs up, good. Thank you so much for
joining us. We have with us obviously, as you know Robert Mujica, Melissa DeRosa, Dr.
Zucker, Gareth Rhodes and Beth Garvey. I know that you received the letter, or the
answer to your letters just recently. I appreciate your patience. So, what I thought was
best to do since I'm sure you haven't had a chance to go through all of the answers is
we're going to go through each section of the letter quickly and just tell you what our
response is, and then allow you to ask questions about those sections so that way it's
not only us talking but then you can ask if you have a question about example Surge
and Flex, or nursing home numbers, or the March 25th order, or the visitations. We'll tell
you what's in your response to the letter and then you can ask questions, and hopefully
that will allow us to be more productive since I know you haven't had a chance to read
the letter. Does that make sense for everyone at this point? Great. I see a lot of nodding
heads. Alright, good. Thank you, Senator Rivera. So, Gareth, I don't know if you want to
-- 
 
Assemblyman Gottfried: Okay, Dana before you go on, do you know that when you
say, "we just recently received them," that's like two minutes ago?
 
Dana Carotenuto: Yep. I know. I understand that, Assemblyman. So, that's why I think
the most effective way is so that way you have a chance to respond to each piece of the
letter and to go through each one.
 
Assemblyman Gottfried: We were told earlier in the day we would get them an hour
before the meeting. I didn't expect them, but it is what we were told.
Dana Carotenuto: I hear you. And again, I apologize. 
Melissa DeRosa: If I could, I think that we had originally intended to do all the
responses in advance of the hearing and then Shontell reached out and said that
people really wanted responses now and we wanted to be responsive now. So, it was
an imperfect process because it meant that we were scrambling to make sure that
everything was in here. We know that you guys want to release this to the press, so we
also wanted that in mind. Legal had to go through it ten times. So, I apologize. It was
with good intent that we were trying to get this done for you guys today so that you
would have it now, and not have to wait until the 25th, and we could at least begin this
dialogue, and for those of you who are the chairs at least you could get candid answers
from us in real time. So Assemblyman, I do apologize. I know it was supposed to be a
couple of hours ago. The briefing ran late -- there's no excuse, but that's what
happened. So, I'm sorry. Do you guys want to turn it over to Gareth?
 
Dana Carotenuto: Yeah. So Gareth, if you want to walk through the letter of each
section and then we can open it up for questions on the sections. If obviously people
don't have any questions on those sections then we can go to the next one, but we can
make sure that we are tying exactly what's in your letter and answer questions to that
point.
Gareth Rhodes: Great. Thank you, Dana. So I'll start with the beginning of the letter
with the Surge and Flex program and I'll move as quickly as I can through it, and then if
there are any questions on any of this, just feel free to interrupt me and I will answer the
question. Surge and Flex, as you know, we put this in place last March. This was in
response to many individual hospitals and networks kind of operating independently of
one another, and our desire to kind of build one statewide system, especially during the
height of this crisis. This allowed us to use data tracking systems to understand where
PPE was, where staff was, supplies, ventilators, et cetera. We had real time data
dashboards tracking this statewide. Part of the state of course for late in the Spring was
mostly downstate, and then we of course activated this over the last month to parts of
upstate experiencing different surges. We were able to move patients from hospitals
that had high volume to patients at hospitals that had low volume, and it really was a
successful program that even though we saw enormous rates of growth in the Spring,
and of course slower but still serious rates of growth in the Fall, it helped hospitals avoid
what we saw in Italy and other countries, where people weren't even able to enter these
facilities. To help put this in place for future pandemics, DOH has put out regulations as
we've codified a lot of these measures in EOs, in regulations to ensure in the future that
this could be pulled off the shelf at a moment's notice and put in place. We've held
numerous calls and discussions with hospitals and hospital systems to make sure they
understand what Surge and Flex is and what's expected of them. I think what we saw,
especially over the last couple of months throughout upstate New York, where some of
these smaller systems had more patients then they were expecting it worked very
successfully and very well. Are there any questions on Surge and Flex?
 
Assemblyman Gottfried: Yes. A couple of questions. One is in all this very detailed
data that you've been keeping track of since March, like how many masks every
hospital has, I think you know what my question is: if someone is admitted to a hospital
or dies in a hospital does Surge and Flex pay any attention to where that patient lived at
the time of the hospitalization? Like what county they lived in.
Gareth Rhodes: Yes, we do -
 
Assemblyman Gottfried: And did it keep track of whether they came from a nursing
home, and which one? I'm sure the answer is yes, I just want to hear somebody say
that.
Gareth Rhodes: So, the department of health tracks hospital admissions across the
county of residence and the ZIP code of residence of the person admitted, the source of
admission, whether the person comes from their home, they come from a congregate
setting; they track a number of these different aspects of every hospital admission. I
would say that maybe separate from the Surge and Flex program, the Surge and Flex
program is really designed to help ensure hospitals themselves are load balancing
across different hospitals. So, in terms of the Surge and Flex program tracking exactly
where patients were coming was probably not a central part of that, but DOH does
certainly track where people come from.
 
Assemblyman Gottfried: I don't mean to interrupt, but that's not what I was asking. I
don't care what the label on the program is that gave you the information. What I was
really asking was it sounds like from the very start the health department has known
exactly how many people in a hospital and how many people who died in a hospital
came from a nursing home and which one, that the department has known that every
day since sometime in March. The short answer is yes.
Dana Carotenuto: So, Assemblyman you're speaking about hospital numbers and
nursing home numbers, not about Surge and Flex, which Gareth is going through. So,
let's just go to that section with the numbers that are reported out on the nursing
homes. 
 
Assemblyman Gottfried: Okay. Well as I said, I asked because it sounded like the
description of Surge and Flex talked about keeping track of every imaginable piece of
Data in a hospital. So, I thought this might be the time to ask the question. If it's in a
different program, that's fine. But you know, the answer to my question is yes, that's all.
Robert Mujica: Just to clarify one point on the question. Surge and Flex, right,
regardless of what you call the program, do hospitals track where people come from?
Do they know people's addresses and where they come from? The answer is yes. The
next question was something else, which was do we know what they died from and
everything else. That's where we're leading to here. So the answer is yes, hospitals
know and have information about where someone came from when they get to the
hospital.
 
Assemblyman Gottfried: And the department knows.
 
Dr. Zucker: Let me clarify it, Assemblyman. You know we get different data from
different sources, right. So we get the HERDS data that comes in from the hospitals or it
comes in from the nursing home. We get information, we ask the nursing home, we ask
the hospital. The HERDS data is provided with initials and with age, that's how the
HERDS data is recorded. It's recorded that way because it's a real time way to get
information. As you remember from when I was speaking about this in the summer I
mentioned that this is real time data, but it's also we have to protect the privacy of those
patients or residents depending on the nursing home or hospital. So that's why we're
working with initials and age. The SPARCS data which comes in has a name and a date
of birth. That takes a longer period of time to figure it out. We don't know which nursing
home they came from or not, because if you look on the SPARCS data form it'll say
where it came from, a long term care facility, a clinic. It's just a drop down of the icon
and that's what you're clicking on. So, it doesn't necessarily say which nursing home
they came from or which clinic they came from. Then we are trying to, you know, this
goes back to the issue of data and trying to look at the data and verify all of the data,
because now you're asking someone to take a look at somebody who has an initial of
AB and age of 85, and then say does that match, you know, Alan Bates and a date of
birth of whatever date that would be, and that's where this has to go in. Surge and Flex,
which Robert and Gareth just mentioned, that was a different part of the response to
COVID, that is a revving up the system to make sure that we have the capacity to
handle what was predicted to be 140,000 beds. So, there are two different things here,
but that's the HERDS and the SPARCS data.
 
Assemblyman Gottfried: Does the HERDS data mention what the patient died from?
Dr. Zucker: The HERDS data mentions the comorbidities, and then in those
comorbidities -- and this is how when we originally started tracking data, we wanted to
figure out who is coming into the hospital and what other problems they had. Initially we
were looking, because this is how we know whether diabetes, obesity, hypertension,
what were some of the triggers of making someone more susceptible of dying from
COVID, and that's how we were tracking the comorbidities on that. And then obviously
there's a death certificate if they die in a hospital, which as we've spoken about has
multiple different lines on it and you could die from cardiac arrest secondary to
respiratory failure, secondary to COVID, and it's always an amount of time next to those
on each one of those lines.
 
Assemblyman Gottfried: So to pick a date, on April 23rd if you wanted to know not
names, but if you wanted to know how many patients from the Isabella nursing home
died in a hospital during the particular day in April, your people could have gotten you
that information?
Dr. Zucker: We have to go back and look at the HERDS data and try figure out -- so it
does go back to me and you have to figure out, okay so from Isabella nursing home did
they report through the HERDS data that they had X number of people who went to a
facility, right? And then we have to verify that that is correct, that is where they came
from. Now, and then the data also goes into the SPARCS system, which is more
specific on the name. But -- 
Assemblyman Gottfried: Somewhere in the HERDS data it would have said, it would
have given you information about every person who died in a hospital who came from
Isabella.
Dr. Zucker: We collected the data from the hospital, and that provided information
about -- 
 
Assemblyman Gottfried: All right. You know what, I think I heard a yes and let's move
on.
 
Melissa DeRosa: No. With all due respect, Assemblyman, I don't think you're listening,
and I would ask that if we're going to have a conversation, let's have a conversation. If
you want to level allegations and then not listen to the answer, then we don't need to do
this. So Beth, if you want to jump in and talk about this, because I think there's
additional complicating factors that you also don't understand. Go ahead, Beth.
 
Beth Garvey: Right. The hospital -- we were particularly concerned at the hospital with
county of residence prior to admission from the perspective, to Gareth's point, about
load balancing and what the capacity was so that you could accurately track how
counties were doing in terms of hospital capacity, and then we could back track into
"this county had this number of COVID cases." As I understand it, the HERDS data that
we were getting from the hospital did not have the specifics of a facility. The SPARCS
data that would follow on later might say whether someone came from a long term care
facility, but it was not specific. So, when you are characterizing it as on any given date
you could go and look at Isabella nursing home and determine how many people died
there, that is an incorrect characterization of how we could look at the data and access
it, because the input that we had from the hospital would not have given us that level of
data, and the nursing home which would have given us a view into a number of patients
that went into a facility were only by initials and were not specific to a hospital. So, it
said "hospital" but you could not determine which hospital. So there were multiple
different data sets that needed to be reviewed -- 
Assemblyman Gottfried: Okay. Let me ask a slightly different question, if on April 23rd
the Commissioner wanted to know how many patients died of COVID at Elmhurst
hospital who came from the nursing home, not the specific nursing home, but on a given
day how many patients died at Elmhurst or St. Mary's, pick a hospital, how many
patients died of COVID on a given day in that hospital and came from a nursing home. I
think you're telling me that the HERDS gives you that data.
Beth Garvey: No, it does not. Let me explain. So, on that day on April 23rd, if we
wanted to go into HERDS and look at Elmhurst we would go to Elmhurst and we could
see these are the 25 patients who died that day, and these are comorbidities, and these
are their ages. It would not show us where they came from. The SPARCS data would
come online at a later point, isn't that correct doctor? So that would then give us the
information of if they came from a long term care facility, but on any given day we were
looking at individual patients in that facility. So, you'd have county of residence, so you'd
know where that patient came from by county, and then you'd have the age, and you'd
have I think just initials. 
 
Assemblyman Gottfried: Okay. So nowhere on the HERDS form is there a place to
put down that a given patient came from a nursing home?
Beth Garvey: Not from the hospital. We would separately get a report for that day from
a nursing home that would report to us a death of a patient even if it was -- 
Assemblyman Gottfried: Okay. This isn't going anywhere -- 
Gareth Rhodes: It's reporting on fatalities, and reporting on admissions, it's different.
 
Beth Garvey: They're very different.
 
Gareth Rhodes: That's why. There's an admission survey and a fatality survey.
 
Assemblyman Gottfried: Let me say again, let's move on. 
Senator Skoufis: Can I ask a question before we move on? I'm sorry, and before we
get deep into specific issues and your responses. Can I and can we just get a moment
for you all to explain, and look Dana texted me earlier today to take my temperature
before the hearing, and that's fine. And I explained to her that we have our policy
differences at time, but like the thing that bothers me to no end and annoys me more
than any policy disagreement is when I feel like there's no response coming, I'm being
ignored, the legislature writ large is like sort of being disregarded. And the responses
we're talking about here are from a letter that we sent in August. It's February 10th,
2021. So can we just take a moment to hear from you all as to why it's taken six months
to get back to us? And look, I've been put in a pretty bizarre situation where like I'm as
frustrated as anybody about the lack of forthrightness and getting answers. And look at
hearings it's pretty commonplace where we're told by commissioners, not just you
Commissioner Zucker but more generally, "oh we'll get back to you with an answer" and
then we never hear back what the answer is. So like this is a pattern and I've been put
in this situation the past few weeks where I'm being asked by the press, "how come
you're not subpoenaing for information for questions from six months ago?" I'm as
frustrated as Republicans, I'm as frustrated as everyone on this Zoom and my
colleagues here that didn't get answers, but I'm also not going to let Republicans bully
me in a committee meeting and force subpoenas and act politically. That's not how I
work. By the way, defending you guys in one sense but I'm just as irate as everyone
else. You put me in that position and so I want to know why it's taken 6 months to get
these answers and I welcome this conversation. We should be doing this more often
and I hope the next however many hours you're forthright. Why is this answering a letter
from August? 
 
Dr. Zucker: Let me answer this, Senator. What you've heard a little bit before was this
issue that we were trying to provide you with the amount of data and clarification on
data and you heard us speak a little bit about the HERDS data and the SPARCS data.
We haven't even touched upon the MDS data or the ECLRS data. What the ask was to
be sure that this information is accurate and it's transparent and that we weren't having
any duplication. From what I was mentioning, what Beth mentioned before and I can
elaborate a little more on some of the questions you were [inaudible] was addressing,
but the fact is that we needed to check and be sure that the initials, the names, the date
of birth and the age all matched up. 
 
On top of that, remember, that's just getting the demographic. We still need to know
whether the person had COVID or not. That brings us to the ECLRS data and whether -
 
[Melissa DeRosa/Senator Skoufis crosstalk] 
 
Senator Skoufis: Commissioner, I'm speaking more generally than just that one
question. The Senate letter that we sent had, I think, 17 questions. I think there was an
Assembly letter with many questions. So, yes, there is a question of what the data and
the audit, and you're not going to convince me that you could not have done this audit
faster than 6 months' time. I believe you started the audit a few weeks ago when this all
started to bubble over.  But I'm speaking more generally than just the nursing home
death question. 
 
Melissa DeRosa: Senator, I can take this question. I don't know that this is going to
satisfy you, but it's the truth and the truth works almost every time. The letter comes in
at the end of August and right around the same time, President Trump turns this into a
giant political football. He starts tweeting that we killed everyone in nursing homes, he
starts going after Murphy, starts going after Newsom, starts going after Gretchen
Whitmer. 
 
He directs the Department of Justice to do an investigation into us. He finds one person
at DOJ, who since has been fired because this person is now known to be a political
hack, who sends letters out to all of these different governors. And basically, we froze,
because then we were in a position where we weren't sure if what we were going to give
to the Department of Justice or what we give to you guys, what we start saying was
going to be used against us while we weren't sure if there was going to be an
investigation. 
 
That played a very large role into this. We went to the leaders and we said to the
leaders, can we please pause on getting back to everybody until we get through this
period and we know what's what with the DOJ. We since have come through that
period. All signs point to, they are not looking at this. They dropped it. They never
formally opened an investigation. They sent a letter asking a number of questions and
then we satisfied those questions and it appears that they're gone. But that was how it
was happening back in August. 
 
In the intervening period, the second wave happened. The vaccine rollout started and
all of our attention shifted elsewhere. And I know that's not the answer you want to hear
and you guys should be the only priority that we have as we're moving through this - 
 
Senator Skoufis: I'm not suggesting that--
 
Melissa DeRosa: No, no, no - I'm sorry, I didn't mean that to be snarky. I'm saying this
sincerely - and I've communicated this to Shontell and Louann - I want to make you
guys more a partnership. I want to answer your questions on a rolling basis. I offered to
do something weekly or bi-weekly so you guys get questions on a more often time and
we can have a candid conversation where it doesn't feel like everyone is sniping at each
other through the press and it isn't really about the policy and it isn't really about the
information, it's about this political back and forth. 
 
So, that is what happened. On the audit, I mean, now that I am knee deep in this and I
understand all of this. On April 17, and we don't need to get too far on a tangent, but just
so you guys understand part of all this. On April 17, DOH sent out a notification to all of
the nursing homes it regulates and says prospectively, tell us anyone that died in the
facility, anyone you think died of COVID in the facility - like presumed, but presumed
has a medical context and definition - but just saying presumed. And the nursing homes
took that to mean I'm going to look backward and guess, essentially, that you believe
was confirmed COVID in a hospital and that you think was presumed in a hospital. 
 
All of a sudden, at the end of April, you get a massive data dump from 600 nursing
homes where they're reporting back to January and saying presumed COVID. And
DOH, in the middle of what was still the height of the pandemic, while we were
scrambling on a daily basis to make sure that hospitals weren't overwhelmed and
collapsing, when we were trying to make sure that people were getting the care that
they needed, when we were still making major decisions about what sectors of the
economy would be safe to reopen or close, when there was still massive PPE shortages
and while we were being shot at on a daily basis from Donald Trump - that we needed
to go through these reams of data. It's 14,000 people. Then it wasn't 14,000, it was like
6,000 or whatever the number was. 
 
And none of it was reliable. It was based on initials. It was based on the data that they
thought they died in the hospital because they didn't know for sure. It was based on co-
morbidities that the list of the co-morbidities are pneumonia, cancer, HIV/AIDS - all
these things and they're guessing that because it was around that time, maybe it was
COVID. This was a massive undertaking and it was happening while we were still at the
height of the pandemic. That's when that data dump happened. 
 
So, I'm just asking for a little bit of appreciation of the context. Your point is very well
taken, Senator, and we are going to do better and you have my promise that we're
going to try to do better on a rolling basis, ongoing basis, to answer you guys. If it
means Shontell or Louann arrange one-offs, or Zooms, or phone calls, or weekly
meetings, or whatever - I'm open to it. 
 
So, we do apologize. I do understand the position that you were put in. I know that it is
not fair. It was not our intent to put you in that political position with the Republicans. 
 
Senator Skoufis: Okay. Thank you. 
 
Assemblyman Gottfried: We don't have enough time today to explain all the reasons
why I don't give that any credit at all. 
 
Senator May: I'd like to jump in here too because and just follow up to James and I, I'm
not sure about anyone else in our colleagues here, but also the other thing going on that
we were in difficult re-election campaigns and getting hammered about this every single
day and apparently my erstwhile opponent did an LTE today attacking me on this issue
too. 
 
The issue for me, the biggest issue of all, is feeling like I needed to defend or at least
not attack an administration that was appearing to be covering something up. In a
pandemic when you want the public to trust the public health officials and there is clear
feeling that they're not being forthcoming with you, that is really hard. It remains difficult.
I think I want to ask you to figure out how do you do this messaging in a way that makes
it clear to people - I mean, if you could explain some of these things to people in real
time instead of just feeling like you're not telling people the real story that would make it
easier on you and easier on us at the same time. 
 
Assemblyman Kim: Can I just chime in? Secretary, I appreciate your summary of what
happened the last few months. So just to summarize and get back on the agenda, just
to simplify what's been said, it sounds like there's been multiple data points that had to
be matched if that's what I'm hearing? There was a number of extenuating things that
were occurring at the same time that prevented the nursing home data to be matched
with the hospital data, it sounds like. Whatever. Where are we now? Can we just get to
this point? Did we resolve all the data matching? Have we resolved it? Do we have
some accurate -
 
Melissa DeRosa: I'm happy to take this, Assemblyman. Sorry, Doctor, if it's okay. I was
briefed from the data team right before we came in. So, on page - I actually don't know
which page it is - but the upshot is, yes and no. 
 
Yes, meaning the confirmed in-hospital we believe is resolved. They're going to go back
and audit it again to make sure and they're going to line it up with death certificates
once this is all over. That number we believe is firmly resolved. There was the category
of probable out of facility. Either in a hospice or a hospital. The nursing home people at
DOH went back to the nursing homes and said what did you base this on? Their answer
was we based it on what we thought retrospectively. 
 
They asked, did you confirm with the hospitals? Because, again, a probable - it's a
scientific term, it's a medical term, it's not - you guys know this, I don't need to explain it
to you. The answer was no. They had no confirmations from the hospitals. DOH is now,
there's about 330, 329, that are left unresolved at this point that they are trying to go
back and through either lab data or death certificates, resolve. That is the last bucket. 
 
There were 60 that had been reported that the nursing homes said this was our best
guess. They ran it against lab data and they reasonably believe that 60 of those are
actually associated with negative tests. Those were taken out -- and this is in your letter.
Those were taken out. There are about 330 that they're still investigating. That, to my 10
minutes prior to this meeting, is the number that's still outstanding. 
 
Dr. Zucker, do you want to? 
 
Dr. Zucker: That's correct and there are 281 that are just unknown. We're just never
going to be able to figure out the answers just because of the complexity of the situation
and the speed at which were moving. 
 
You're on mute, Assemblyman. 
 
Assemblyman Gottfried: Am I off mute? You understand, Dr. Zucker, that when we're
talking about thousands and thousands of nursing home residents who died in
hospitals, whether we're missing data on 5,000 people or 5,289 people, is not the issue.
It's that we're missing data on 5,000 people when it's a question of being 50 percent off
on how many nursing home residents died in hospitals whether it's 50 percent or 51
percent is not the issue. 
 
Melissa DeRosa: I'm sorry to interrupt you, but I am failing to understand where you're
going with this? Assemblyman Kim just asked a question - we answered the question. If
you just want to lecture us, I'm happy to call you after this and you can yell at me, but I
don't want to waste the time of the Senators and Assemblypeople who are on this call
who have better things to do and I believe are genuinely interested in getting these
answers. If you want to call me afterward with Dr. Zucker on speakerphone, I'm happy
to do that, but if we want to continue forward in answering new questions, then let's do
that. 
 
We are still dealing with a pandemic and I know your colleagues' time is valuable and
not everyone has the time to just sit here and have you just yell at us to no end. So can
we continue please? 
 
Senator Skoufis: Can I ask two more questions on this issue real quick? First, is DOH -
are you all going to go back to your July 2020 report where you look at transmission in
nursing homes now that we have significantly higher numbers that formed the basis of
that report? 
 
Melissa DeRosa: Senator, yes. It's funny you should mention that, we actually have re-
run the data and there's an amendment to the bottom of the nursing home report that
we're going to give to you guys after this. They're just running it through one more time.
It examines the patterns and, most interestingly, what I found from the new data is that
the fall -- first of all, the curves match almost identically from community spread. 
 
When you look at the curve of deaths generally outside of non-nursing home, non-
congregant care facilities, the curve matches almost identically with the nursing home
curve both in the spring and in the fall. The only difference being that in the spring, the
delta was much larger. So where the deaths in the spring, were call it 30 percent of all
overall deaths, when you look at the curve in the fall, it gets to be like 40 to 50 percent. 
 
There were much closer alignments of the percentage of deaths in the fall than in the
spring, but the curves match almost identically. I'll be happy to get you a copy of the
updated report, we're just running it through one more time with legal. 
 
Senator Skoufis: Great. We'll have that today or tomorrow? 
 
Melissa DeRosa: Yeah, I'll be happy to get that to you. 
 
Senator Skoufis: Okay and the other question on this issue is, so we heard from a
whole bunch of people at our hearings who lost relatives in nursing homes but the
family members weren't tested for COVID before they passed away. Some of them
actually had to fight to get COVID on the death certificate. I'm just wondering how you
all, as you're counting all these deaths, how you all deal with that situation where
someone wasn't tested but presumably, many of them did die from COVID? 
 
Dr. Zucker: Senator, I think you hit the nail on the head on this issue about the
complexity of trying to get answers to data. This is exactly what we were talking about
before. Some of those were presumed, right, when we were unable to do the amount of
testing we are now able to do or even able to do back in May and June when our testing
was significantly ramped up.
 
We had those presumed cases and that's what we were trying to come to a conclusion
about. What often happened on some of those death certificates is it [inaudible]. From x
problem secondary to y problem, secondary to quote presumed COVID, right? And --
 
Senator Skoufis: Are all of your presumed deaths individuals who did not test for
COVID? Is that by definition what is a presumed death? 
 
Dr. Zucker: That's where the ECLRS data comes in to play and that's where the
numbers that Melissa just mentioned about some of those individuals where they're
presumed or presumed COVID and then we need to go back and try to figure out
whether there was a test done on that individual and does those initials and that name
match up with that test. That's what takes a fair amount of time to work through so that
those numbers that Melissa just mentioned are in the right cell, the right box. 
 
Senator Skoufis: Right. I get that. So you're talking about going back and seeing if they
were tested. So let's say you go back and find they were not tested, are they pulled out
of that presumed number automatically? We're hearing from people who are adamant
-- 
 
Melissa DeRosa: I can take this, Senator. I've been through the testing for dummies of
late so I now understand it backwards and forwards. So everyone has sort of different
standards. The CDC has 3 different points that have to be fulfilled in order to be
considered a presumed death. If it's on a death certificate that the cause of death is
likely COVID, which does not require a positive test, it's that medical examiner in his
best judgment believed that this person had COVID even though they didn't have
testing ability at the time or that you are somebody who died of something, you don't
know what, but you know that that person had direct - not access to - but you were
directly in contact with someone who's known to be COVID positive and you're
displaying COVID symptoms. 
 
New York City, for example, puts out their probable number every day. What their
health department decided from the very beginning was that in order to be considered a
COVID probable it had to be on the death certificate. So, even though you didn't test
positive for COVID, the medical examiner still lists likely COVID or COVID presumed. 
 
So, no. The answer, when you go back through and you check ECLRS and you look at
the lab data, if you don't come back COVID positive that does not mean you come out
of the presumed category. You would stay in the presumed category assuming you can
check a death certificate where it says COVID presumed or if you go back to the
hospital and the hospital says on our record, we believed it was COVID. 
 
The important thing is the place where the person actually passed away classifying that
person as COVID presumed. What got tricky is the nursing homes were speculating, so
a patient would leave, go to a hospital, later pass away. They did not ever get
confirmation that that person had COVID but then furthermore, the hospital didn't say to
them we didn't test them for COVID, but they also aren't presumed COVID, so they're
speculating. A lot of this was done retrospectively. 
 
As I said before, this data dump that happened on April 17, a lot of nursing homes
literally looked at their books, and they saw "this person passed away on March 2nd,
and, you know what, thinking back to it, they had a respiratory issue, I feel like some of
the staff may have had COVID, I'm filling that out as COVID-presumed." As you guys
well remember, we didn't have our first COVID positive case that we knew about in New
York until March 1st, and we didn't have our first confirmed COVID death until March
14th. So there's no scenario under which the hospital would have listed on that person's
death certificate "COVID-presumed" because no one was saying anyone was COVID-
presumed because we didn't even know COVID was here.
 
Senator Skoufis: So a lot of this was speculative in the early days. I think it's probably
safe to say that there were COVID deaths, maybe many COVID deaths, that were not
included by the facility as presumed, right? And so the number's probably even higher.
 
Melissa DeRosa: I think it's true that when this is all said and done, when you do a real
retrospective, the excess death number, which is like all, you know, all of the states are
going to have to look at, is going to give everyone the best view of what happened in
this pandemic.
 
Beth Garvey: [inaudible] corollary to that is we were asking these hospitals to give us
this information under penalty of perjury. We were having the facility administrators
attest to this data on a daily basis. So I do think, looking at how they're reporting, I think
they're more likely to over-include than under-include, because we were from the
beginning, I think very strict with them about how often they were supposed to report,
how accurately they were supposed to report, and we were incredibly broad in seeking
that data from them because we wanted to have as much information as possible.
 
Assemblyman McDonald: Okay. Can I just ask a couple questions please? Dr.
Zucker, I think you probably know the answer to these questions, but in regards to the
HERDS and SPARCS data, how, what's the timeline for that to be submitted?
 
Howard Zucker: Well the HERDS data is real time, so that's turned around within a
day. The SPARCS data takes longer. It could be actually, prior to COVID, even weeks
that you can end up waiting for a SPARCS data or even longer than that. But at least a
week in time to get SPARCS data, if not longer.
 
Assemblyman McDonald: You know, I'm in the health commerce system a little bit
from my other life, and I recognize it's interesting, it's amazing how much is there ,but I
find it interesting that, do nursing homes have to report when somebody, do they have
to report to one of the systems if someone's leaving and going to a hospital?
 
Howard Zucker: So they report information into the MDS, which is a federal system,
and a minimum data set that has to go in. Nursing homes report that, that's the data set.
And that has, obviously, full name and date of birth that goes into that. Your question
about whether someone has to report that they've left and went to the hospital, you
have to collect that data. This is where it goes back to what we're talking about before,
about the HERDS, you have to ask them for some of this information. The SPARCS
data doesn't tell you whether, the hospital SPARCS data, the hospital data, or the
hospital SPARCS I should say, it doesn't say that the patient came from a specific
nursing home. It doesn't even say if it came from a nursing home. Because when you
click on it, so think of it this way, someone could be in a nursing home, they bring them
to a clinic or somewhere, and then they decide they need to go to the hospital. They go
to the hospital, and the hospital says, where did this patient come from? I have to put
this in to the SPARCS data. They do the drop-down and say oh, they came from a
clinic. Click. Little do you know that the person originally earlier in the day was in a
nursing home. That's why it became difficult to look at this info.
 
Assemblyman McDonald: Okay. And the hospitals aren't required to ask that
information for the HERDS data either?
 
Howard Zucker: No. When we asked them the question on the HERDS data, but we
did not ask some of this information because as I had mentioned to you, first of all, it
was real time, we wanted to move quickly, we were in the heat of this March and April
months when things were pretty hectic, and also there's the privacy issue, as you know,
to protect the information of the patient. Because the HERDS data isn't as protective in
some ways as the SPARCS and the MDS data.
 
Assemblyman McDonald: I will mention for the other members as one who actually
works in the ECLRS system, [inaudible] are very easy and I can see where at times
date of births can be a problem. Just, I'll leave it at that. There's a lot of manual entry
unfortunately, because there's not a lot of [inaudible] fully integrate.
 
Melissa DeRosa: You have any questions? I feel like we haven't had an opportunity
yet. Gustavo? Senator Rivera?
 
Senator Rivera: I'm good. Just making notes for the moment, and seeing—
 
Melissa DeRosa: Okay. I just wanted to make sure you had an opportunity if there was
anything.
 
Senator Rivera: Yes ma'am. Well I think, I think you know that if I needed to say
something—
 
Melissa DeRosa: Fair. You and I have that in common.
 
Senator Rivera: We sure do, bro. We sure do.
 
Assemblyman Kim: Commissioner, one quick question. I'm just very perplexed by the
whole data tracking and I'm trying to wrap my head around it. So let's say in a non-
COVID situation, if I have a loved one in a nursing home, they get sick, they get
transferred to, like you said, to a clinic, and then they end up in a hospital, and I'm trying
to track down my loved one. Where is my grandfather, I don't know where he is. And
somehow, somewhere down the line, they don't have his information, he takes the
wrong type of drug at a hospital, would I be in a position at that point to have legal
recourse, that some sort of malpractice had occurred during the transfer of my
grandfather from the nursing home to the hospital?
 
Howard Zucker: Your question is there a record of this, is that? I mean, the person's at
the nursing home—
 
Assemblyman Kim: If something bad happens during the transfer, and there wasn't
information on his identity, on his information because of the lack of real time data that
was being transferred from the nursing home to the clinic to the hospital, in a non-
COVID year, if that was going on and my loved one ended up dying at a hospital as a
result of the lack of information that was being shared in this pipeline. Would, in a non-
COVID year, without any kind of legal immunity, would I be in a position to say, hey,
there's a liability issue and I have a right to hold these facilities accountable?
 
Howard Zucker: Well you, I mean, I'm just speaking more with my doctor's hat on, if
your relative or any of our relatives showed up at a hospital, right, and they were coming
from a nursing home, then the question is, which nursing home, right, you would know
which nursing home, right. You would be able to get a record of the transfer, the
ambulance company, because the hospital would know when the person arrived, it
would go on the record, a piece of paper would go in the chart, which ambulance took
the person there, and then ultimately you'd know the hospitals they were at. So you'd
have to take the legal recourse, and obviously it's more a legal question as to who in the
chain from the place the person started and the hospital were responsible for a potential
injury.
 
Beth Garvey: Like you are suggesting that the real time data is a state failure, or are
you talking about the facilities? Because facilities always have an obligation to report
the data to the different treating facilities and they are still required to keep accurate
medical records for their patients. Nothing about the immunity statute that was done in
the budget would have changed that piece of it, and you know, my recommendation to
any family that feels that there was any gross negligence is that they should bring an
action, and they should obviously always consult an attorney.
 
Howard Zucker: If you're asking whether that data ends up in some system, it doesn't
necessarily go into the SPARCS system. It won't necessarily end up there. Sometimes it
does, sometimes it doesn't, more often than not it doesn't' end up there. It's just not the
way the SPARCS system is designed. If you went online you'd see, it's like many other
things, it's just a dropdown. And so it's a little bit different than one would think that it
should be put in.
 
Assemblyman Kim: Right, but there is a trail record of information that carries with the
resident or the patient from one place to another, to the ambulance—
 
Beth Garvey: There's not actually one uniform electronic medical record for all patients.
So I think we have to be really careful not to conflate a patient's medical records, or their
medical history, or what a facility should know about a patient, with any of this
emergency reporting that we were doing due to COVID. And even SPARCS and the
MDS, these data sets are data collected usually for vastly different purposes. They have
very little to do with the care of the patient and everything to do with billing for Medicaid
purposes, or in the case of HERDS, that was for us, for our emergency planning
protocols. So I think, you know, if what the point you're really trying to make is about
what should a facility know about a patient that they're going to see, that's an electronic
health record, and yes, we spend hundreds of millions of dollars a year trying to make
sure that those systems all speak to each other and coordinate, and that's for patient
care. But I think what we have to be careful not to do is to conflate all of these different
data sets and suggest that there is liability on the part of the state not making all of
those different data sets talk to each other.
 
Assemblyman Kim: Thank you.
 
Senator Rivera: Yes, I'll take a shot at something. So I'm looking, obviously as you
admitted, we just got this to us like a few minutes before we started this thing. So what I
thought that I was going to see, and I have these documents opened up in a separate
window, what I thought I was going to see, which would have been helpful, is actually,
since there were 17 questions, 17 answers. That's kind not what happened. You chose
to organize it differently, which is fine, I guess. But I was wondering if we could actually
do that and go down some of these questions since, some of them certainly have been
answered, and since, as was pointed out by some of my colleagues, this is a letter that
is seven months old at this point. Some of the stuff has already been resolved, and
that's perfectly fine, but there's some stuff that still hasn't. So at least for me, I think it
would be helpful if we actually went through them.
 
Melissa DeRosa: I think the goal was to answer them in narrative form and add even
more data than you asked for, but I'm happy to do it however you want.
 
Senator Rivera: Okay. So the first one relates to testing, and I know there was a part of
the document that dealt with this, as a witness reported that her father was showing
symptoms, they didn't know how to test him, this was late March, early April. So as far
as nursing homes having the ability to test their residents, I guess, just give us like the
two-minute version of how that, because most of that has been resolved for the most
part, correct?
 
Gareth Rhodes: The, starting in the summer, the federal government provided, I
believe, every nursing home that was willing to take one, rapid testing capabilities. And
that is ongoing. The state has provided to date, 3 million test kits for the PCR staff
testing, which is not the antigen testing - the testing that goes out to the labs. We
provided over a million of the rapid, Binax testing kits that we get from the federal
government. So any nursing home that has asked us for these rapid testing kits, we
have provided them.
 
[Crosstalk]
  
So I think in terms of resident testing, in terms of staff testing, we're in a position where
we can really provide a lot of the testing capabilities to the nursing homes.
 
Senator Rivera: Gotcha. So for the most part you're saying most of this, they have the
capacity. Now when you have a particular test that's available that does not require it
going to the lab. The state has enough of them, well you've been distributing them to
nursing homes, making them available, and they've been taking you up on it. So, for the
most part --
 
Gareth Rhodes: We do require PCR testing for the staff. That still has to go out to the
labs. And the state provides the swab kits, so the transport media and the nasal swab,
we provide that free of charge to the nursing home, and that goes out to the lab, which
then is charged to insurance, or there's a lab fee associated with that. In terms of rapid
testing, those do not need to go to the lab. Most of the facilities have a device, like a
small, size of a credit card reader almost, that does the antigen testing. And in addition
to that, we have provided the BinaxNOW, which is basically a lateral flow [inaudible]
credit sized test, that doesn't even need an analyzer. It can just be done without any
type of equipment. We've provided over a million of those to the nursing homes. About
500,000 just for this month already.
 
Senator Rivera: Very well. Second question, dealing with PPE. So obviously since
again, this is seven months old, there were a lot of issues with PPE at the beginning,
which we all acknowledged. It was everybody had issues with lack of access to PPE.
Nursing homes in particular didn't have certain equipment because under normal
circumstances, they would not need it. A hospital, they needed N95 masks. You didn't
necessarily need it in a nursing home. So everybody was kind of hard up for it. On the
PPE issue, do you feel that you have solved that issue and should there, I mean, God
forbid, another surge, that you would be able to deal with it on PPEs?
 
Gareth Rhodes: It's different, I think, than it was in the earlier, in the Spring. We've now
required hospitals to have a 90 day supply of PPE, and nursing homes to have a 60 day
supply of PPE. And they have to certify that to us, and if they do not have it they are
penalized. So we are now requiring those type of stockpiles on hand and certification of
that, so it's a different position, certainly a different position than we were in the Spring.
 
Senator May:  Can I ask a related question to that? Because I've been hearing from
nursing homes, and certainly was hearing in the summer about all the reporting they
had to do, and it was, you know, reporting to the federal government, reporting to the
state government, reporting to the county, reporting. In some cases, they had to count
through all their PPE every single day, and it was like a full-time job for somebody to do
that. Have there been efforts to streamline the reporting?
 
Gareth Rhodes: It's a balance, right. We wanted this to ensure that every nursing home
has the right types of PPE, the right supply of it, that as they use it, they're purchasing
more, because we don't want a scenario where someone is running low on a stockpile
that they have certified to us that they have on hand. As we saw in the Spring, how, you
know, we were at a place where we were seeing almost 1,200 hospital admissions a
day, you know, or net growth almost 1,200 a day. Knowing how fast this virus can
spread, having the large stockpiles on hand was really I think a very important goal and
an important policy we put in place. So it is a balance. You know, we understand the
reporting requirements are difficult, and we do try to work with the nursing homes and
other hospitals to streamline them, and we have made some modifications to do that.
But to us, getting that kind of data is important on an ongoing basis. And we do
recognize that there is challenges in reporting it, but it's a balance between getting the
right data, and, you know, making it convenient for the facilities to report.
 
Senator May: Do you know if the federal government is collecting separate data, or is
there maybe in the Biden Administration an effort to coordinate?
 
Gareth Rhodes: There's, to the extent of the data that is reported to the federal
government and the state aligns, and we can make that just one system, we've worked
to do that. Sometimes, you know, we like to have our data in a, you know, the HERDS
is a daily survey, for example. We like to have this in real time. Some of the federal
reporting is lagged by a number of days or it's more weekly, it's not on a daily basis. So
I think the frustrations around data reporting is how often the state wants this data
reported, daily, as opposed to over longer periods of time, which I fully appreciate, and I
think as the numbers continue to come down, and as the, you know, knock on wood,
hopefully, we don't know what the variants are going to bring, but hopefully these
numbers continue to come down think we can certainly look at taking different steps to
relieve some of those inconveniences from the facilities.
 
Senator May: Okay.
 
Senator Rivera: So moving on a little bit, I'm sure as far as question three, I'm certain
that there will be, as you have here at least generally committed to continuing a
conversation. I am sure that this is the one that we will return to many, many times,
since obviously there are still, some of us were scratching our heads about your
explanation about the numbers of deaths. We will, for the moment, I will forgo that one,
and let's go to number four if possible, because I know that we're going to go back to
number three a billion times. Number four, related to staffing levels. You know,
obviously, what can you tell us about what is being done to ensure, the question itself,
what is being done to ensure sufficient staffing levels are being maintained during any
public health emergency?
 
Howard Zucker: So we continue to address [inaudible]
 
Senator Rivera: Your audio, sir?
 
Dr. Zucker: Can you hear me now?
 
Senator Rivera: Is this the day that the chief information officer of the State of New
York actually had technical issues when he was about to start. I wanted to ask you
about staffing and all of a sudden you don't have a microphone? Bro. Bro.
 
Dr. Zucker: Do you still not hear me?
 
Senator Rivera: Now, you're good.
 
Dr. Zucker: Good. We have been addressing this issue of staffing and in follow-up to
the question before that I think addresses the staffing issue, many of the nursing homes
have, I've contacted them over the course of this pandemic to be sure that they have
enough individuals to help work with them. We also have 95,000 portal, and that
number may be up but it's around that number of people to help out with the nursing
homes. The bigger picture staffing in general is that we want to be sure that and make
sure that any nursing home or any other facility or hospital has the appropriate staffing
for the patients that they have, whether it's a hospital, an ICU or a nursing home. So,
we're working on it.
 
Senator Rivera: Okay.
 
Senator May: Let me follow up on that one. So we've been doing a lot, hearing a lot
about home care, so there are facilities that want to say a person recovers, they're in a
nursing home for rehab and they recover and [inaudible] to go home but they need
some assistance at home. And the lack of the home care workforce is a real issue and
keeping people in nursing homes, forcing people into nursing homes, it's just
devastating for some families and it's all part of one economy and one of my
frustrations. I felt like in the summer you identified staffing as kind of the vector with staff
moving from facility to facility who were asymptomatic who were spreading the disease
but they were doing that because they weren't making a living working one job and so
they had to work multiple jobs. So I feel like it isn't just number of staff but how we pay
them and really paying attention to that and I'm wondering if this is a matter of concern
for you because it's a huge matter of concern for the Legislature.
 
Dr. Zucker: And I remember we spoke about this in the summer about this issue and
this is part of a whole job to look at the nursing home and long-term care delivery
system. And the Governor had vaccines, to make sure we have vaccines for the home
care workers, that's one of the essential workers, so that they can get back into those
homes to help individuals. So that's, we are very focused on that issue as well.
 
Senator Rivera: So moving on to the next one, there are many concerns about the
change to unenroll patients from managed long term care plans after 90-term short term
rehab stay. Can this policy change be delayed in light of the pandemic? That's
something that you all dealt with?
 
Beth Garvey: I think as far as some of the MRT recommendations, I think we are by
and large still moving forward with those. We have made certain delays in certain cases
where I think just operationally we have not been able to effectuate those in the midst of
everything else going on in the health care system. I don't know if Robert has any more
specifics.
 
Robert Mujica: There are some specific recommendations that we're not moving
forward with. Some of them are precluded as a result of the FMAP funding that we're
receiving, so some of those recommendations we can't move forward with so we're
holding those in abeyance pursuant to --
 
Senator Rivera: Do we have -- is the Legislature aware of what those are?
 
Robert Mujica: Yes, I think we have.  We have a list of them. I think we've said it but if
not we'll make sure that you are aware of what those are, so there is a list of ones that
were specifically precluded when the initial legislation for FMAP was passed by
Congress and they said we couldn't move forward with these. It's anything that affects
individuals so it was any of the MRT recommendations that dealt with eligibility, any of
them, some of the ones that affected long term care, that affected eligibility are the ones
that we did not move forward with, the limiting of hours specifically, probably the one
that you're most interested in, so we've held that and we'll keep holding that until the
FMAP expires. Otherwise if there is any that, there are no others that impact nursing
homes specifically, that we've held back or that we think impacted them or we've heard
from the homes that there's an MRT recommendation that specifically impacted the
homes but if there was one, we wouldn't move forward with those.
 
Senator Rivera: I would be remiss if I didn't say that I certainly thought those were
wrongheaded recommendations, but hey, we've had that conversation before. I'm sure
we will have it again. Next one, when can we expect, and I think some of the stuff I think
you have dealt with, this is question number 6, when can we expect the answer to the
letter of August 14 concerning visitation policies and changes to these policies? It's an
extremely urgent concern for families of residents and staff, and I'm sure that you know
that we passed a bill through the Senate just a couple days ago, [inaudible] to Rachel
May's bill related directly to this, and while I'm sure that she would want that to be
signed into law, if it can be done administratively, as I can tell you about most of the bills
that I put forward, you want to do them administratively, God bless America. Can you
tell us about the visitation issue please?
 
Dr. Zucker: Sure. This is a really important issue because I know there are many
people who just can't wait to get to see their relatives in nursing homes and it's been a
long time. So, the issue here is that we have followed the federal guidelines on other
issues regarding the pandemic and the CDC and CMS have not opined yet on the issue
of visitations. Let me elaborate a little bit more on this. We know that 75, in New York
State, 75, 77 percent of the residents have been at least immunized or will end up with
their second dose soon and 40 percent of the staff have been immunized. However, we
also know, and this is why you have to follow the science on this, we also know that the
virus can sit in your nasal passage and you can be immunized yourself but actually give
it to someone else. We also don't know what's going to happen with these variants that
are circulating about in the world and we have cases obviously here in the United States
in the UK and the variants from Brazil as well as in South Africa and other states. The
issue is that we haven't made a decision on this. We're following what the CDC says
and every day something new comes out so today the CDC put out a report or a notice
saying that if you're fully immunized after your second dose, two weeks after your
second dose, then you don't need to quarantine if you're exposed to somebody, so
that's new. That's new information that just came out, at least for 90 days from the time
of your second immunization. So we have to wait for the CDC and CMS in some ways
as well to give us guidance on that but my goal is to move, it would be nice to be able to
move to have people back in visiting their relatives but as I said I will follow the federal
guidelines on that.
 
Senator Rivera: You want to follow up on this, Rachel?    
 
Senator May: I do, yes. So respectfully, when you say it would be nice, what we said
earlier about the issue of excess deaths, and I think one thing we're going to find is that
there are a lot of excess deaths as a result of the fact that people were not going into
the nursing homes and visiting their family members. And I heard from a woman whose
mother went in for rehab and then died of an infection that the staff just didn't pick up
but if her daughter had been visiting she would have known that there was something
wrong. And there was a lot of cognitive decline, depression, people stopping eating, all
kinds of things that are leading to death in nursing homes as a result of the situation that
people are experiencing and just the fact that they don't have the people coming in to
make sure they're eating or dressing or toileting or whatever they were used to in the
past. So I think it's more urgent than just saying it would be nice if—
 
Dr. Zucker: Well, I agree, and I get it. There's a lot of -- this is one of those balancing
issues. You don't want the virus in the nursing home to spread and you also want to
protect those who are there and you want to protect those who are coming to visit as
well, but you also want them to be available to be there for family, for --
 
Senator May: So, Connecticut and New Jersey have taken steps, kind of what we
proposed and it would be great to take a look and see how effective they've been.
 
Senator Rivera: Yeah, and far be it from me to say that we should follow New Jersey's
lead but hey, when even they're doing it, come on, folks. So what about pediatric
nursing homes?
 
Beth Garvey: Yeah, well we did also have significant conversations throughout the
summer and early fall with CMS, and CMS continued to have a 28-day prohibition on
visitation whenever there was a COVID case in a nursing facility. So we have followed
CMS, we have, when CMS went and said we think that there should be visitation
outdoor, even if there are COVID cases, we still say that a visitor is required to have a
negative test within seven days even if it is a facility that has not had a case within the
past 14 says, but you know we will review your bill, Senator May. I'm not suggesting that
we're going to in any way dismiss it out of hand but what we do struggle with is what is
the level of vaccination in a facility and what can we do to assure the safety of all of the
residents, and we certainly do understand compassionate and end of life visitation.
Those were always permitted even after the March 13 order that restricted visitations
and we've also I think made great strides to get the long term care ombudsman back in
the facilities as well.
 
Senator May: Great, thank you. Yeah, so my bill isn't about throwing the door wide
open. It's about people can designate one or two personal care visitors and they would
follow the same protocols as the staff, so that's the idea.
 
Robert Mujica: Just on Dr. Zucker's point, just a lot of these decisions are a balancing
act and when you look at what the other states, the record of the other states, New
Jersey has now exceeded New York in per capita deaths. You look at the experiences
of the other states, many of them around us who have more flexible policies also have
seen more deaths in nursing homes than New York has and those numbers continue to
get higher in those other states. So if we look at just that data, and not that any one of
these things is a factor that is changing it, but combined all of these factors are
contributing, and just New York's experience presently and from the beginning of the
pandemic we're seeing that other states are consistently seeing -- we know that the
virus preys on people who are in nursing homes as a fact because they are more
vulnerable. A lot of our policies have resulted in us having fewer people die in nursing
homes than what some of these other states are experiencing, there can be a lot of
factors there, not saying any one of these [crosstalk] but the comparison to other states
is probably important.     
 
Senator Rivera: Rob, hi, so remember the saying in a press conference, that you don't
have to pump your chest about us being awesome. We have some serious concerns
about that claim that you continue to make and that our dear governor continues to
make about us being so much better in every respect than other states. So I'm not going
to go down that rabbit hole right now with you, so as long as we stick to, as you said,
facts and answers to the questions here and not necessarily spin—
 
Robert Mujica: No, no, I wasn't referring to the overall infection rates, just referring to
the nursing home deaths as a percentage of total deaths, that fact as it is. Nursing
home deaths as a percentage of overall deaths in the state. That's it, right? That I think
is an objective fact that we can get you, and that's in the report.
 
Melissa DeRosa: Just to turn back to the visitations for a second because I think that is
a really important issue. Once we got COVID under control in May, early to mid-May
and started to reopen the economy, there was, and we actually started to institute that
nursing homes had to test their staff twice weekly, I don't know if you remember that
period and then, you know, we went really far in one direction because we believed that
the staff was the main driver of infections in the nursing homes because at that point we
had closed off visitations since the beginning of March but it was still entering the
nursing homes at a rate that was explainable directly through the staff. So we did the
two, twice weekly on staff, and then there was a lot of pushback from the private for-
profit nursing homes who said, "this is costing us too much money." And then there was
a lot of complaints and then a lot of people said we shouldn't have to force them to do
this, and so then we were concerned, okay, they're saying it's going to cost too much
money, it's going to cause these nursing homes to start having to divert funds there as
opposed to on PPE and all of these other demands that were coming in. And then there
was a lot of people who really understandably wanted to see their loved ones and there
was a legitimate fear that those of us at this table felt, and the people at DOH who we
worked with, we finally got this thing under control, if we start to loosen the reins, you're
going to allow people to walk back into the nursing homes—
 
Senator Rivera: Is he making faces? Again, this is not a spin room folks.
 
Melissa DeRosa: You're right, it's not a spin room. I'm trying to explain how decisions
were made which I thought you guys cared about.
 
Senator Rivera: Miss DeRosa, I got you. This idea though that this is under control—
 
Melissa DeRosa: Gustavo, I'm talking about in May and June because they were
talking about visitation and when different policy changes were made.
 
Senator Rivera: Right.      
 
Melissa DeRosa: Okay, if we don't care about why decisions were made that's fine. Go
on to the next.
 
Senator Rivera: Miss DeRosa, the interruption, which was rude on my part and which I
apologize for, was not related to your explanation of how decisions were made. Such
explanations are warranted and welcome. However, and if the camera would actually
pan to her because you all are like a sitcom, you got three or four cameras there, so if
can point it at Miss DeRosa that would be good, because I just want to make sure that
you understand what I'm saying. The notion, I think that it is a very easy challengeable
notion that we have this under control. 
 
Melissa DeRosa: I didn't say we had it under control now, Gustavo. I said back in April
and - I'm sorry, not April - back in May and June when the numbers had come down,
and then we pivoted and started mandating twice weekly testing for the staff, but we
had not yet opened up for visitation. I was walking back through the facts. If you are not
interested in those facts we don't have to talk about it. I have other things to do too, so if
you'd like to move on we can move on. I'm trying to explain the facts of how we got here
and the competing demands on dealing with a very real issue for families who have
people at nursing homes which is Senator May's question.
 
Senator Rivera: Yes, it was.
 
Melissa DeRosa: It was her question. I was trying to be responsive to her. You are now
interrupting, so if you want to move on then we can move on. I apologize, Senator May.
I am happy to talk to you about this afterwards. Senator Gustavo Rivera doesn't care
about your question.
 
[Crosstalk]
 
Senator Rivera: It is true, we're actually far more like each other than either of us would
like to admit. [inaudible] passive aggressive [inaudible].
 
Melissa DeRosa: In any event, we got it under control at some point in the spring. We
were very concerned about loosening the reigns. We also understand the very real
need to have people visit with their loved ones at the end of life. I have family members
that are in nursing homes. I hear from my family all the time saying, 'your aunt hasn't
gotten a haircut in months.' We all hear these things too and are sympathetic. We were
very afraid to start loosening the reigns when it appeared we it appeared we had things
under control. We then moved to the 14-day, which is something we had done in
consultation with the CDC and CMS, and now we're in a period of vaccination where
we're trying to make sure we get as many of these folks vaccinated as possible, so it
can be a free in and out where we don't have to worry that by being visited by a loved
one, not just their loved one could get sick and die, but that other people's loved ones
could get sick and die. So, I haven't seen your bill specifically, Senator. I'm happy to
review it and talk to you after this and we're always open to improvements on this.
 
Senator Rivera: Gotcha. And again my apologies.
 
Senator May: Sorry, my connection's unstable.
 
Senator Rivera: Rachel, did you need a follow-up on that one?
 
Senator May: No, I just said I had just gone off video because my connection is
unstable, not being rude.
 
Senator Rivera: No worries. There was a paragraph, and I know I haven't read it yet,
but in the answer related to cameras in, that's question number 8, we're almost halfway
through it, can we get clarification on the current status on the ability for families to
install cameras in rooms?
 
Dr. Zucker: So there is guidance to that. There are regulations about that and nursing
homes and families have been using surveillance cameras for years, right? So we do
have specific regulations on that and exactly how they can be used, where they can be
used and what clearance has to be done and we can elaborate on that if you would like
to see the regulations on that.
 
Senator Rivera: Sure it wasn't necessarily one of the things that was the top of my
agenda. I don't know if any of the Assembly Members and Senators want to follow up
on that point on the cameras thing? So I'll move on to number nine, has
DOH considered implementing unscheduled inspections? We've heard a lot about how
facilities prepare for them in ways that don't necessarily reflect day to day reality. I'm not
sure exactly how you're doing inspections currently. 
 
Dr. Zucker: I mean we do unscheduled inspections, it's not that we haven't done it. We
have also done thousands of inspections probably three and a half per nursing home on
average across the state since the pandemic has begun. Remember, the challenge
here has been that there have been many times when we needed to go in and check
and make sure everything was fine the nursing home, and we've had our staff focused
on that specifically but unscheduled inspections is something that is part of the
process. 
 
Senator Rivera: Okay. Question number ten, what planning is being undertaken now to
identify step down facilities regionally in New York, or transfer of COVID-19, COVID
positive patients from hospitals in the event of another surge, please provide an update
on this planning and whether regional approach is being undertaken. I know you
probably did some things you probably already [inaudible], because again it's a seven
fold letter so I just wanted to make sure that we've covered all the bases. 
 
Dr. Zucker: For the record, we have 18-19 facilities, COVID positive facilities in place
there across the state. We have looked at this to make sure it's available everywhere. 
 
Senator Rivera: Gotcha. We already talked a little bit about compassionate caregivers
as far as visitations, including my very rude interruption of Ms. DeRosa. Moving on
to twelve. How does broad immunity for health care entities, and this is
actually Assembly Member Kim's particular point, how does broad immunity for health
care entities protect those minority communities who already receive a lower standard
of care? There's certainly a lot of us that are concerned about the broadness of this
protection. 
 
Dr. Zucker: The Governor's made an incredible commitment to, to the minority
communities across the state and including this morning at the press conference, when
he spoke about this issue. And so I think that that regarding vaccinations. 
I'm not sure if you're focusing specifically about nursing homes or just the bigger picture
and the, the in the bigger picture and that includes nursing homes, we have been
extremely focused on the issues of minority communities. 
 
Senator Rivera: In this case, in this case, particularly about. I mean, since we're not, at
least I don't think we're having a conversation necessarily right now about vaccinations
and about equity and vaccination distribution etc. That's a whole other ball of wax and
talking specifically about the questions here, as it relates to the, to the immunities that
were provided to facilities, since early in the, this is question number twelve and come
to --

Beth Garvey: I can take question number 12. So, so we did negotiate legislation as part
of the budget, it was, in collaboration with both houses to assure that we would continue
to provide liability in situations where there was gross negligence modeled on our
state's Good Samaritan laws, understanding that we were in an emergency situation.
We were across the state, having surge capacity issues. We were requiring facilities to
set up care for patients in places like cafeterias and other areas where they normally did
not provide patient care, so there were obviously myriad concerns associated with the
liability around that. When, when the legislature passed a law to further restrict that in
May, we signed it. We, on May 8 also repealed our executive order that initially granted
immunity for the healthcare practitioners who had come in from out of state because at
that point in time we were also no longer having practitioners come from across the
country into New York as many other states started to experience their own surges. So
we're open if you want to have a conversation about further changes or amendments to
that law. We're happy to have that conversation with you.
 
Assemblyman Kim: Well, I appreciate that. Thank you. I think, I think the point is, that
there was an executive order, I forgot the exact number, on March, 23, that spoke to the
Good Samaritan law to allow volunteers to come in and be protected but between
March 23, and the proposal that got enacted in April 2, it was broadened beyond the
scope of volunteers that included, you know, trustees, shareholders, the board
members, it went retroactive to march to non-COVID hospitals and nursing homes. And
we felt like it was very broad and retroactively we took away patients' and nursing
home residents' rights. So I do appreciate the Governor signing the bill to modify the
immunity, in July, but, like, like you just said, I mean I think we have other suggestions
to hold some of the bad operators accountable retroactively, so we'll share some notes
in the near future.
 
Melissa DeRosa: I think that if there is any evidence that anyone was willful or anyone
was negligent in a way that goes beyond the normal course that costs people's lives, I
think that they, we all share the same goal, which is to hold them accountable. I think a
lot of these nursing homes, frankly retrospectively even prior to COVID have been
getting away with a lot for a lot of years. And I think that this can be a useful
conversation in changing that dynamic. So I completely agree and I think Beth should
follow up with you, Assemblyman, and leadership to see what we could do. 
 
Assemblyman Kim: Thank you Ms. DeRosa, and then to that point I think you're aware
of the St Albans nursing home with the veterans nursing home site that give out
experiments with drugs to a bunch of veterans and one of them passed away. I think the
Governor did comment on it yesterday. So in those types of facilities, I think those
families should definitely have some sort of retroactive justice.
 
Melissa DeRosa: Dr. Zucker, do you want to speak to that specific instance? 
 
Dr. Zucker: I'd like to comment about that because that issue at St Albans was the
issue of the hydroxychloroquine, right. Number one, that was -- the state was not
ordering that and that's a doctor patient relationship a decision about what to do. But
more important, or as important, I should say, is the fact that we have to remember that
the context of this. Initially, we were looking for any possible therapy that could help
individuals with COVID. At that point the thought was hydroxychloroquine with
Azithromycin may help. And so that was provided as an option. When the data showed
that that was not the case, the science obviously realized that that was not beneficial.
The recommendation was not to continue to use that. So I think it's important to be clear
why that was being given at that point and again it was not the state doing that. And it
was also a doctor patient relationship to decide what therapy should be given. 
 
Senator Skoufis: Can I jump in on that similar point but not specific to an individual
nursing home, that you mentioned -
 
Senator Rivera: 14 out of 17 -- we're almost there.
 
Senator Skoufis: Sorry. Secretary DeRosa, you mentioned working to hold these
nursing homes more accountable. And I couldn't agree more. And I think probably most
of us, if not all of us on this call, here agree. And we've got some bills moving to that
end. But I don't know if we've got to this in your responses, yet but one of the responses
spoke to the inspections that were done the infectious control, sort of surveys that were
done during the pandemic, the violations that were found. So 2,200 and
change inspections, I think, 170 violations, which seems low given sort of the
knowledge that we're all operating within the AG's report. It would at least appear that
there are far more bad actors than just 170 out of some 2,200, but that aside, 170
violations, 11 were cited at the immediate, Jeopardy level, whatever that means. So just
a couple of questions on that. One, you mentioned, Commissioner, at the hearing seven
months ago six months ago, I think the number was 1,300 at that point. Since you
mentioned that I've been trying to find any information related to the results of those
surveys. We can't, my office can find anything, whether it's cumulative or an individual
nursing home level. Are you going to be releasing or can you if you have not, I request it
I guess, if you haven't, can you give us some information, even if it's aggregate, related
to what those violations are. Can you speak to what was the highest fine that you've
issued from all those violations? Were any nursing home licenses revoked? You know, I
think, again, we're all operating with this knowledge that there were some really bad
actors, and I like to think, you know, in those most egregious of situations that we pull
licenses, have we?
 
Dr. Zucker: So I can, I will work on getting you the data and the specifics of that, the
highest fine - maybe Beth, do you know?
 
Beth Garvey: So when you look at the fines that we've levied, it's been over a million
dollars. I think it's $1.3 million. We are still in enforcement proceedings on a number of
these. The important thing to note about those infection control surveys, they're done in
partnership with CMS so I think we do have to check federally whether there's any data
restriction on data that we collect there, so we'll try to get you some aggregate
information. What makes it very difficult, those 2,284 are just point in time. So to the
extent that we have inspectors in those facilities, we are making sure that they are
following proper infection control protocols there. We're also looking for compliance with
other executive orders while we're there. So we may ask to see, you know, evidence of
negative tests of visitors, for instance, to the extent that they're visitors in the facility or
making sure that there are no visitors, things of that nature. So to the extent that when
we're there, if there's not a violation that we observe we cannot cite it. That said,
separately we do investigations based on complaints separately, so we do follow up on
any complaints that we receive or any leads that we get whether it's from staff, or from
families or from the long term care ombudsman. So, the, the strata of penalties are
pretty low, overall for nursing homes. So when you see a violation, theoretically any one
of these violations could lead to, you know, significant adverse health outcomes for
someone and they tend to be pretty limited. We are assessing $10,000 penalties. We
are for those immediate jeopardy. That is a revocation of licensure. So, that can result in
a receiver being appointed or it can result in someone actually losing their license. So,
those are most egregious.
 
Senator Skoufis : Has it happened at all? 
 
Beth Garvey: It has not happened. We have significant due process, obviously for
those operators, that we have to go through in hearing. So those are still ongoing. And
we do not have at this juncture, you know, any receivers appointed right now.
 
Senator Skoufis: Okay. I appreciate that information and I think you know, you
acknowledged the 1.4 million and I get it, there's still some more enforcement action
happening, but divided by 170 that's like $8,000, per violation. I think that amounts to a
slap on the wrist and so to the extent that we could all work--
 
Beth Garvey: The $10,000 is really the maximum that we can assess for a violation,
even a willful violation of a public health law. So I think what Melissa was trying to jump
in and say—
 
Melissa Derosa: Yeah I was gonna say, I think that that's something we should revisit. I
think, then we should be increasing the penalties, and I think that if also this process is
dragging on this amount of time as a result of all this, I'm not suggesting we shouldn't
have due process. But if there is a way that we can change the law where we can
expedite some of this, we should do it. And to the extent that you've been asking for that
information and you haven't got it I'm sorry and can we please get it to the Senator right
after this to the extent that is federally allowable. And if it's not let's just explain why it's
not.
 
Senator Skoufis: I appreciate that, thanks. Just to be clear, I mean you. And obviously
a law is preferable as legislators here, but you could have adjusted those penalties
through an executive order, right? 
 
Melissa DeRosa We did some Beth, right? 
 
Beth Garvey: We said that we would take your license and appoint an operator, which
was really an extraordinary relief that was not available to us under the law, because so
many of the executive order restrictions that we've put in are not contained otherwise in
law, we're stuck with 12 D for willful violations, so that's a $10,000 penalty. Obviously
we can, you know, try to wrap those up and do multiple $10,000 violations, what we're
doing right now with the homes is we're trying to settle for maximum penalties and in
fact, we've gotten a lot of letters from them asking us to ease up on the
inspections, ease up on the penalties. You know we're fining people for failure to report
to HERDS timely, we're fining people if they don't have adequate PPE on hand. So, we
are finding multiple violations and we're trying to really stay on top of everything right
now and so it's on multiple fronts. So the nursing homes right now have been very
critical of us, and they are responding very litigiously and digging in their heels because
what they want to see this be is more of a collaborative enforcement structure, and right
now we're obviously holding everyone to the letter of the law and our executive orders.

Assemblyman Kim: Okay. Gustavo, I know you got three more questions, but -
 
Senator Rivera: No -- I just want to be clear, it's a free flowing thing. I just figured since
there were 17 we should go through them, but go ahead.
 
Assemblyman Kim: You should definitely go through. I just gotta hop off, I'm sorry, but
just to summarize, I think I'm gonna go through the questions, Commissioner and Ms.
DeRosa, I'll probably have some follow up with them as well. But just moving forward, I
think the public just wants to get past this. Commissioner when you, when you came to
see us in the Assembly chamber last year, and you wanted to expand the Governor's
powers and we asked for $40 million to get ahead of the coronavirus, many of my
colleagues did not want to do that, they did not want to give the Governor those
powers. I was one of the few ones that stood up for the Governor. And so it's this is not
about whether you personally like him or not like him. This is a moment that we need to
cheer him on, but we need to get behind this executive, because everyone is scared
and everyone wants someone to step in and do this right, and I had a lot of faith that we
were going to get it right. But over the last few months I think we did lose a lot of trust.
Because of lack of communication, for the lack of that, I know we went through all the
reasons why. And I just want to get past this. I want to move forward. And I want to get
solutions, and I know that we touched on a few items but before I leave, I mean if we
can just follow up. Legal immunity, a possible sort of compensation funds for the
victims, a structure, some of civil framework a discussion around that. The ombudsman
program, someone just mentioned it. I know that Senator May has been passionately
talking about giving that some teeth, so they actually have the power to do their jobs.
The increasing penalties was just mentioned, and some sort of a recognition, and
maybe an apology for the March 25. I know this is something that is a sensitive issue,
and no one wants to talk about it, but I think the families, the public I think just
recognize, appreciate some sort of honesty, but just, just the recognition of their pain,
and I think some sort of contriteness from the Administration would go a very long way.
So that's all I have for today, I really appreciate your time, I know you're all very busy.
Thank you so much and I'll follow up with other questions. Thank you. 
 
Senator Rivera: I know the 14 had to do with testing, which we dealt with a little bit
earlier as far as nursing homes, but there's one thing related to pooled testing, I have to
admit that I don't necessary know what that means, but is there a role for it,
Commissioner could you tell me about that?
 
Dr. Zucker: Sure. The pool testing works if there's a relatively low prevalence in the
community. So it really depends on where you are, and that's one of the things that you
have to look at when you're moving forward. When our numbers were coming back
down, when our numbers were high, that was not necessarily beneficial way to do
things. Sometimes this is used in college settings or other aggregate settings. So we
can always look at that. There are specific [inaudible] that have been developed by labs
certified by the FDA to do that kind of testing and we can address that further with you.
But it is very specific to what the prevalence is in the community. 
 
Gareth Rhodes: I would note that each month more and more labs bring on pool
technology. Some of the largest reference labs in the country now are using pool
technology for a large number of their tests that happen. SUNY as I'm sure you've seen,
they've processed hundreds of thousands of tests over the course of a semester using
pooled technology. So it has become a much more common way of testing with each
growing month. I think you see this in the turnaround times now -- close to 90% of tests
are resulted back within 48 hours. The testing capabilities in terms of rapid testing, in
terms of expedient PCR testing, lab-based it's really night and day from where it was
last summer into spring.  
 
Senator Rivera: Gotcha. And there's actually a part of that question at the end which
relates to actually question 16 - not that I'm skipping 15, but that has to do with the raw
data, which again relates to 3 and we're going to have- that's a big one and it is not
going to go away for the moment. But both the end of question 14 and 16 deal with
federal dollars, specifically on testing on question 14 having to do with testing and more
broadly on 16 related to nursing homes. Could you tell us a little bit about some of the
federal dollars that now, thank the Lord that we actually have a damn president who
gives a shit about us, how some of that- what are the discussions related to some of
that money flowing to nursing homes, whether it's testing, or other things related to
nursing homes?  
 
Rob Mujica: So, the federal government, you know, they were changing on a weekly
basis, right, some of their what was eligible for funding, but now it seems with the new
administration that they are- they have changed their tune significantly on what the
eligible expenses are and on the state match or local match that's required. So we're
trying to fit as much into- there were like three pots of money but the FEMA
reimbursement now, that's now making testing available, essentially, for reimbursement
depending on what type of testing, all the vaccination costs now eligible. So, the short
answer to your question is, everything that we can do to get federal reimbursement or
anything that's eligible, we're going to get reimburse the homes for. So if there's any
costs that we can use or give the nursing homes and help them with their fiscal issues,
right, and we can get reimbursement from the feds, we're going to try to maximize the
federal reimbursement and we're getting a much better - we think - a better result. They
have advanced - not yet, but they said they were advancing some dollars to us and,
again, we're trying to make everything that we can make eligible for reimbursement,
we're trying. And we think, to your point, this administration seems more responsive to
what the costs are and it goes both for nursing homes, hospitals and just general costs
associated with COVID. So, we're going to continue to try to maximize that and make it
available to the homes because we know that some of- a lot of these costs are
expensive.  
 
Senator Rivera: So, on 17 again, and after this I'm just going to take a step back and
I'm sure that some of my colleagues might have some more follow ups or more going
deeper into certain things but the last one here, on 17 relates to a question Senator
Thomas asked on Article 81 Guardianship, which again, not something I'm necessarily
all that familiar with, but I know that Senator Thomas cared enough to actually give us a
scenario here that he wanted to actually deal with it, and it has to do with access to folks
who are in this program and whether they had limited access based on the needs of
keeping people out of congregate settings. Can you tell us a little bit about this and
where we are with this now?  
 
Beth Garvey: So, I can take this question, so I think that the question was driving at
whether or not a Guardian would have access and so anyone who was recognized as a
Guardian would have the same access as anyone who is authorized to visit someone in
a nursing home. So, for instance, if it was someone in an end of life situation, I think this
was driving at a period of time when we did not have visitation, and so a Guardian
would be able to visit if the individual could have say a family member visit, and I know
that courts were particularly challenged when it came to hearing some of these cases,
but guardianship cases were always essential and so courts were trying to do these
hearings virtually. I certainly don't want to minimize the difficulty of anyone trying to
navigate the system throughout those dark months there, but I think that things are very
much back in order now with respect to that, and that should all be clear. So if Senator
Thomas has anything you know, that's a continuing fact-specific issue, we'd be happy to
work with him on it.  
 
Senator Rivera: I'll check in with him about that because I'll be honest, that's not one
that I've that I've actually checked back with him on. So, I'm good for the moment. I'll
take three steps back.  
 
Senator May: Okay, I'm going to jump in then because I do have a question and I've
only been able to skim your answer about the March 25th guidance. And I understand
where you're coming from on that and I think I understand the curve issue and that sort
of thing. But, you don't seem to refer to the key point in the AG's report where they say
that there were 4,000 deaths after that guidance in nursing homes, including in 323
facilities that had no known infections before that guidance came out. And so, the AG's
report seems to be - even though you're right, there is a lot of language in there about
how you were following the CDC guidance and everything else, there also seems to be
language linking that decision to additional deaths in nursing homes. And this is the
issue that people, I think, most want to know about when they bring that guidance up
that DOH issued then. Are you going to respond directly to what the AG's report says?
Do you have a response to that?  
 
Melissa DeRosa: Sure. So, Senator, I'm happy to take this one. The AG has since
updated her report. She did it quietly, she didn't tell anyone. She tipped a couple of
news outlets and then they put up a story saying the AG's office updated their report.
That was wrong information, which we would have been happy to tell her had she told
us with more than one hour notice of putting out her report. So, that was incorrect
information. We brought that to their attention after they put it out. They went back and
reviewed all of the data and they have since updated their report and I'm happy to make
sure, Dana, if you could send the Senator a copy of the report and also the news report
where it says they removed that line because that was actually not true. There was
prevalence of COVID in all but three facilities in the state prior to an admission of a
COVID positive patient. So, the statement that there were 4,000 deaths following March
25th, that's true, however there was 4,000 deaths post-March 25th. In the fall there had
been 3,000 deaths, 2,500 deaths, and we all know that that order has since been
clarified going back all the way to May 10th. Although the AG's office also in their report
says very clearly that, through their investigation they found that operators were very
well aware of the fact that that guidance did not supersede their underlying legal
obligation to not allow somebody to come into their facility that they themselves could
not care for, which meant they had to be able to have the proper amount of PPE; they
had to segregate; they had to have separate sets of staff. So, on that point specifically,
I'm actually really happy that you raised it. She has since revised her report to take that
out because they did that based on faulty data, but they did it quietly and they didn't tell
anyone. There was no press release announcing that, so we can get that for you but to
make the record perfectly clear, there was COVID prevalent in all but three nursing
homes in New York State before a COVID positive admission. So, COVID was already
in the facility before they accepted a patient from a hospital or from another facility
where they knew they were COVID positive. Does that answer your question?  
 
Senator May: It does except that, if she was quiet about it why were you quiet about it I
guess is my question? It seems like this is something you would want people to know
and understand and that goes back to this —
 
Melissa DeRosa: It was actually in the response that Dr. Zucker had put out the day of
but obviously so much of the focus was on the number that that almost wasn't even part
of the conversation. But in Dr. Zucker's response that he issued the day of, he clarified
that point and then she since revised her report. But I'm happy to make that more clear.
I obviously know what you're getting at, you're hearing from constituents who are
saying, "but this," so moving forward we can be more clear in pointing that out. If you
guys have direct lines to Tish and you want to ask her to be more vocal about that as
well, but the report has since been updated and I'm happy to get that so you can see it.  
 
Senator May: Great. Thank you.  
 
Melissa DeRosa: Of course.  
 
Assemblyman Gottfried: I have a couple of questions. You're under court order to give
the Empire Center their FOIL request.  
 
Melissa DeRosa: Assemblyman, it went out about five minutes ago. We wanted to do
this briefing with you guys before we send them that.  
 
Assemblyman Gottfried: Okay. Well my question is- well, you've answered the first
part of my question which is, have you sent it to them?
 
Melissa DeRosa: Yes, five minutes ago, and again just so you understand why waited,
it's because we wanted to brief you guys first. 
 
Assemblyman Gottfried: Yes, that's fine. The second part of my question is, would
you now email it to each of us?
 
Melissa DeRosa: Of course. 
 
Assemblyman Gottfried: Okay. Thank you. Please do. My second question is, in our
August letter, the 5th question and last question from the Assembly was that, if you
don't have the various pieces of data that we asked for in our first few questions, and it
appears just to say it briefly that you say you don't. If you don't have that information, if
you're not getting that information, do you have or do you lack the legal authority by
modifying HERDS or something else, to make sure that hospitals and nursing homes
provide you the information that we've asked for. I assume that in the last many months
since we sent you the letter somebody in the Executive Branch has been looking at that
question. So, do you have the authority to start getting the information we've asked
about from hospitals and nursing homes or do you lack that authority?  
 
Beth Garvey: I think, Assemblyman, if I could take that one. So, I think we would have
the authority to alter the HERDS data and in fact we have altered HERDS at different
points throughout the pandemic. I think all of that comes with particular challenges and
I'll certainly let Dr. Zucker speak more particularly to what those challenges are but,
from a continuity perspective, it becomes very difficult when we change how we ask a
question. We're asking them to attest under penalty of perjury. Different people are able
to interpret that question sometimes differently and we can get wildly different answer.
And so at the times where we've changed the survey, even what we think is a slight
change, it can dramatically change how facilities report in to us and lead to, you know,
several days or even weeks of trying to then figure out where the miscommunication is;
why some facilities are now increasing their reporting and some facilities are now
decreasing in ways that we're not expecting. So, you know, it becomes a challenge that
we tend to only add on to what we've already asked to make sure that we continue to
get the same data for continuity purposes, and so again, as we talked about a little bit
earlier, the facilities are continually complaining about the changes in reporting, the
need for frequency and reporting, and the disparate reporting between state and federal
requirements. So, yes, we can change it. It's always a little bit fraught to change the
reporting though. Dr. Zucker? 
 
Dr. Zucker: I think, Beth, I think that you covered it all. In this also, it gets very
confusing when you're starting to have multiple different kinds of datasets and
information coming in. But legally, we could do it. At the right time we could address
them.  
 
Assemblyman Gottfried: Well, I I'm glad to hear that. I think the right time is - not only
now, but several months ago, so I would hope you would do that, and if people need, as
you said, a few days to sort out what they're being asked for, gee, that's worth it.  
 
Dr. Zucker: Well, one of the pieces of information, I raised this before is the issue of
asking for someone's date of birth and their name and as we've spoken about, we want
to be sure we protect the privacy of individuals and how information is flowing. And so,
the last thing we want to have is information that's out there and someone says, you
provided health information of individuals that that was supposed to be protected. And
as Melissa said earlier, at the speed at which things were moving was pretty fast and
still is, and we wanted to be sure that data that we received was the hospital systems- if
you're talking about the hospitals, were able to provide us with important data but also
do the job that they were doing at that time, and still do.  
 
Assemblyman Gottfried: Yeah. DOH is very good at keeping this kind of data
confidential.  
 
Dr. Zucker: We pride ourselves on making sure things are private.  
 
Assemblyman Gottfried: Right, right.  
 
Gareth Rhodes: A lot of states do not report- not a lot, but there are several states that,
I think there's nine states that don't report any Long Term Care Facility fatality data
whatsoever. I mean, we're one of a handful of states that even reporting presumed
whatsoever. There- I mean we put up a lot of data online. We're continuing trying to put
up more but it's a balance between real-time data - everyone wants yesterday's data
like this. We get it. We want it and then making sure that data is accurate at the same
time. With testing, this is similar with- there was a ramp up period with this so it is a
desire for accuracy the desire for real-time data. The New York Times did a story last
week about how Indiana went back and redid all their records. Washington State I think
took 300 fatalities off of their website and they're adding 150 back on. I mean this was a
challenge to public health departments across the United States and I would disagree
with the assessment that DOH keeps this data hidden. DOH put up huge amounts of
data on online and we continue to do so.  
 
Assemblyman Gottfried: I was complimenting you about keeping individual patient
information confidential. Take a compliment.  
 
Gustavo Rivera: Yeah, you got you got to hang out with him a lot more to understand
when there is snark and when there isn't. It takes a little bit- it's a little tricky sometimes
but there was no snark there. I can confirm. 
 
Senator Skoufis: Can I ask a- it's not necessarily a nursing home specific set of
questions. It's certainly pertinent to nursing home policy, but its pertinence is sort of
macro public health policy here. And I'm just trying to understand, I think it's instructive
to what we're talking about, like how these decisions are made. I mean it was brought
up a in reference before, you know, how these decisions are made, and so for a lot of
people looking in and I'll just speak for myself but I think for a lot of Legislators too. You
know, we learn what's happening when the four of you or the five of you are on TV
every couple of days, and that's like, we think you're just making these decisions. I
found, okay, and I don't want to go into like sort of the gory details of sort of the
personnel decision-making and all that, but like the New York Times story from about a
week ago, it was pretty upsetting for me to read that these epidemiologists, public
health officials, according to New York Times left because they were sidelined or they
felt they were being sidelined, right. And so, and again, I don't really care so much about
the personnel side of that but it raises the fundamental question for me is, if they're not
making the decisions, who are? You know, I know there are some consultants I think
that are involved but like since- so just to pick an example, right, so you had these
microcluster zones that - and I host a couple of them in my district or up until recently I
did - and you guys just stopped creating these in November. I think that was like the last
round of these microcluster zones and for months we were told like this is what the
science tells us we should be doing. Instead of shutting down the whole state, the
evidence-based approach here is we just target where there is a spike in infections and
create new restrictions there. But it stopped in November, and so I guess like, just to
use this example, if you can answer like who at DOH at the staff level was involved in
signing off on creating specific zones, and then how would the decision made seemingly
to like abandon this approach given that certainly there have been spikes in
communities throughout the state since November but there haven't been new zones.
Like, just walk me through maybe that specific example. Who was involved, beyond the
four of you or five of you in developing that, in moving on from that approach, specific
names if you could at DOH, or titles? The consultants specifically, how were they
involved? Could you walk me through that example?
 
Melissa DeRosa: Sure, I'll take this one Senator. So, the New York Time story aside,
although I'll say that I had never heard of the five people that they came to us with. As a
reminder, there's 6,100 people that work at DOH, there's 2,100 people who work in the
Public Health Department alone and this is like seven people and then two people who
have gone to other agencies, but putting that aside for a moment. The Governor
speaks, well obviously Dr. Zucker chiefly advises us internally. The Governor speaks on
a regular basis with Dr. Fauci, and Dr. Michael Osterholm. I would say those are two of
the people that are chief advisors. We also speak with this guy, Bruce Aylward who's at
WHO, who actually, in the heat of the pandemic, we flew in from Asia and who was
staying in Albany and advising us in person. When we created the micro-clusters back
in September, if you actually remember what was going on, de Blasio came out and
said 'we're seeing spikes in these areas, we want to shut down these zip codes.' We
went back to Dr. Osterholm and pulled in Tom Frieden, whom, I'm sure you guys know
is the head of the CDC and used to be head of New York City DOH, we talked to Bruce
Aylward and we said, 'what do you guys think that we should do? How should we
handle this? Do zip codes make sense?' Then they came to us and said zip codes
aren't a way to define a region because the virus doesn't respect it really, you guys
should be looking at census tracks. And then additionally they said to us, 'you shouldn't
just be looking at the core center where the prevalence is, because the virus moves
outward, so you guys should create these buffer zones.' So, that's how we had the red,
the orange and the yellow zones and you could loosen the restrictions a little bit as they
come out. And none of this is perfect, right? Everyone was doing this in real time, but
the goal was to try to deal with the public health issue, while at the same time try to not
crush the economy, which was just starting to get up and running. So, we went to them,
we asked them, they advised us, and when we actually announced the micro-cluster
plan, we put them in the press release as three of our advisors. We ran the numbers by
them. They agreed with the strategy. Michael Osterholm was actually out on MSNBC
selling the plan as New York is leading the way and it's an innovative way of thinking
because it doesn't have to be all open or closed. And you should be keeping schools
open because schools are a place where you're not seeing dramatic prevalence. So,
honestly, we really punch up in that regard. The people at DOH are great. The Governor
gets on the phone with the top experts in the world and in the country and asks them for
advice on an ongoing basis and obviously consulting hand in glove with Dr. Zucker. I
can't name for you those people in the New York Times article. I never met them. I
understand that people are frustrated at DOH. I am frustrated. The idea that they say
that morale is low - there is a national mental health crisis going on in this country.
There are days that I don't want to get out of bed. There are days when I don't speak to
my husband, I am frustrated because the press is attacking us, you guys are attacking
us, every decision we are making is being second guessed. So, I don't deny that I'm
sure there are people at DOH who feel like they're not the voice in the Governor's ear -
they're not. To the extent that DOH is in the Governor's ear, it's Dr. Zucker, but beyond
that, we really look to Dr. Fauci, Dr. Osterholm, WHO, and on top of that, I have now
been advising the Biden administration on their transition and COVID. I have great
relationships there - you saw today we were there with Jeff Zients - and the Governor
and I are constantly now speaking to the head of the CDC, the head of the FDA and
everyone on Biden's COVID team that he has set up and created. So, to the extent that
there is bureaucratic back fighting that is going on, or frustration, that is what it is and I
will readily acknowledge that not every single opinion at DOH is being listened to by the
Governor. Those aren't the people in his ear. He is talking to the national and
international experts. He's talking to Dr. Zucker. But on the zones, that's how that model
came up and then DOH would help us put it together. So, they would take the positives.
They would draw the circle. We would then look at how far out you should draw this with
the rings around them to make sure that you were catching the potential spread that
would happen and that's how that happened. Once we got to November, we realized
quickly that positivity which had been a helpful indicator earlier, was no longer what the
standard was that was being used nationally on how you make decisions around
closures because there were a lot of people getting sick who were no longer dying. The
number of people who walked into a hospital in the spring who died was vastly larger
than the number of people who walk into a hospital in the fall and dying. And so you
didn't have to necessarily make the decision based on cases, we pivoted and started
doing it based on hospital capacity. The decision was made that government's role
needs to be about hardening the hospital system and making sure the decisions that we
were making are going to keep the hospital system up and running, unlike what you say
in Texas and California and in Nevada and Arizona where the hospital systems actually
collapsed on themselves. So, in consultation with Dr. Osterholm, with Dr. Fauci, we said
'does this make sense?' And then we actually did a press conference where we talked
about how we were hardening the system going into the second wave and Dr. Fauci
participated in that press conference and the Governor presented his plan and he gave
his approval. So, to the extent that you're curious as to he talks to constantly and who is
in his ear, those are the people. And then Dr. Zucker obviously represents his
Department to senior staff and to the Governor in day to day decision making.But on
your point to not getting more notice on decisions that are being made, that's something
I've actually spoken to Shontell and Louann about as well and now that you guys are
back in session, especially now that things are a bit more manageable, we talked about
doing weekly briefings at the central staff level to make sure they have access to
everybody here, so they know what we are thinking, when we think decisions are going
to be made. But I'm not going to lie, some things are done on the fly based on the
information we have that morning and that's never going to be completely ironed out,
but to the extent that we can minimize that, we will strive to.
 
Senator Skoufis: I appreciate that and you answered my question. Just to close the
loop on it, so can you just discuss -- so I know that there are these consultants in the
background that the state has brought on, can you tell us what they do and who they
are?
 
Melissa DeRosa: Well, I'll have Robert discuss this more at length, but in my opinion,
they're sort of our number crunchers, but go ahead Robert.
 
Robert Mujica: We have a few consultants, the main one is Boston Consulting Group
and what they're doing is just providing us with data analysis, right? So, what they're
doing is they are benchmarking for us what's going on across the country, across the
world, and we get reports from them about -- every day we're looking at infection rates
around the country, infection rates around the world, what are policies other countries
are doing, what are policies other states are doing and gathering all of that information.
They are benchmarking what are the guidelines and restrictions that other states are
doing on a regular basis. And they're not making any decisions, they're just informing
our dialogue. If you ask, if you look at health care professions, epidemiologists,
departments of health in every single state and every single state has a different answer
on how you deal with this and how you deal with that. You look across the country and
that's what we ask them for. 'How is this state dealing with gyms? How is this state
dealing with restaurants?' They're collecting all of that information and then using that to
inform the guidelines and restrictions, but every single guideline that we have put out on
restrictions, has to be approved by the Department of Health staff and then by Dr.
Zucker. Every single one. Now, there's some people in the department that don't like the
fact that they have a different opinion on how you do this, right? And even the people
that Melissa talks to -- I talked to Dr. Zucker almost every single day and every single
day we talk about why they are doing it this way in this country, and why are they doing
it this way in this state. Now, Beth just sent me an email while we're sitting here - 'Fauci
just said we need to wear two masks.' You know, we have video of him saying everyone
should wear - nobody should wear a mask eight months ago. Now, he is saying wear
one mask, now wear two masks and it changes all the time. Put up barriers - we have
these, right? CDC just put out a report that said these might be harmful because they
don't allow air to circulate, right? So, that is what these consultants do. If you ask all of
these professionals, right? They all have often different opinions. We had this
discussion, the other day Dr. Zucker says to me the problem is there is no right answer
for all of these things. So, they are people that we rely on for data analysis, they provide
us information, we have daily phone calls - twice a week phone calls, with seven other
states that are around us in the seven state coalition. At 8 a.m. we get on the phone
with them twice a week and go through with them - 'What is your state doing? What
does your state seeing?' So, we have that group, and then we have the national group
and then we have conversations with the world professionals and if you look at what
everyone is doing - everyone is doing it differently and people are getting different
results and we're just trying to stay like - see what are we doing, what is every other
state doing and what is the best practice for reopening the economy and doing it safely
and all of those people - we are having those discussions. But again, there hasn't been
a single guideline that we have put out that hasn't been signed off on by the
professionals at the Department of Health, by Zucker. But we do pressure test them. I
can tell you that, like we do. Someone comes and says -- and is not a health care
professional, right, and they come up with 'well we think we should this' and we push
back, right? We push back. We say, well why? What about this state? What are they
doing it this way? What are they doing it that way? Some people don't like that, but we
think we end up with a better result by doing it, but that's what it all is and we do consult
with them, but as Melissa points out, not every single person's opinion prevails all the
time.
 
Senator Skoufis: Thank you. And just to be clear, Boston Consulting and these groups
that you have hired, they are not involved whatsoever in the public health decision
making process here, right? Is that accurate?
 
Melissa DeRosa: Yup, I'll give you a direct answer. Nope. They literally - just Senator
so you get a sense of it - I'll send an e-mail at 2 o'clock in the morning and say 'I need
by 9 a.m. a matrix of what every state is doing on stadiums. I want to know how many
how many are allowed inside. I want to know how many are allowed outside, and I also
want columns of what their hospitalization capacity is and their positivity, by 9.' They will
write me back at 4 a.m. and say 'confirmed' and by 8:58 a.m., I'll have it in my inbox. I
genuinely, and I don't mean this to be demeaning, they are our on demand number
crunchers, search for data, pull this information - but in no way, shape or form are they
involved in any level of decision making beyond providing us with context and data so
that we can make decisions.
 
Dr. Zucker: I just want to add one more thing about information and how it comes in for
me from other places. So, every Tuesday morning, I wake up to a call with two of our
neighboring states - New Jersey and Connecticut - the three Commissioners. The three
of us discuss what is going on. Once a week, the region from Maine all the way down to
Pennsylvania, actually New Jersey/Pennsylvania, we have a conversation about what's
happening the in the region and every week all the Commissioners from across the
country have a conversation about what's going on. So, that's how we get information
from everywhere and then one every week or two, I speak to the WHO.
 
Senator May: So, let me follow up on this because one thing we know about the
disease is it hits older people and it hits people in congregate care and I talk frequently
to Dr. Sharon Bragman at Upstate who is the Chief of Geriatrics there and she said to
me that they don't, there is nobody with a geriatric specialization advising the Governor
and I know I've gotten a response from you on that, that you talk to AARP and a lot of
other groups, but that doesn't feel quite like an answer to me, especially when we're
thinking of when you know this about the disease, that would be an obvious area of
expertise to add to your team. Was there any consideration of that? Is there anybody
that you can think of who is really an expert that you turn to?
 
Dr. Zucker: Well, I can answer because I have spoken with, not in a formal way, but
many of these conversations are informal, with many individuals who are experts in the
area of geriatric medicine, including one who is the dean of one of our public health
schools here in New York is a geriatrician and also some of the foundations that are
focused primarily on long term care. And those relationships have been established
even prior to COVID because we were addressing a lot of the issues, the problems and
looking at many of the issues about the elderly population and what we can do for them
for health care, whether it's telehealth, telemedicine and things of that nature. So, those
were already formed. Remember, New York is the first age-friendly state. We were
working on that with some of the foundations in other parts of the state as well as in
New York, and that's how the AARP part came in. But she is an excellent physician and
I do know her and I am happy to reach out to her as well.
 
Senator May: And one other issue that just came to me this afternoon because I met
with the occupational health clinic organization and they're obviously looking for money
in the budget, but one of the things that they pointed out is that mental health care is
almost impossible to get as a disability thing. And I'm thinking people working in nursing
homes, the likelihood that a lot of them are going to have trauma from their work - work-
related disability - and in the mental health sphere and it's incredibly hard to get that
covered or provided. I'm just wondering if you all have thought about this issue moving
forward? How are we going to help beef up the mental health support for people and is
there any chance of streamlining the occupational health disability system so that more
providers are likely to take that.
 
Dr. Zucker: So, we have had conversations with Commissioner Sullivan and the Office
of Mental Health about this and I think it's more than just the nursing home community. I
am actually concerned about this in the big picture, because, we have taken the social
fabric and we turned it around and turned it inside out, and we've made a lot of changes
to the way we live and it's not for a month or two, but it's over a year, close to a year, in
some parts of the country it's over a year. I think we need to address this and address it
for both kids who are in school. So it's not just, you know, that end of the spectrum, it's
right across the spectrum and figure out what we need to do. There are many health
professionals who have seen things which have really been a challenge to their own
mental health as well and we need to address that and I think that going forward, this is
something that we need to focus on and then it comes back to the budget issue, but
Commissioner Sullivan and I have spoken about that. 
 
Senator May: Great, thanks. I don't think I have anything more.
 
Melissa DeRosa: Anything else? I mean obviously, this is not the end of the
conversation. This is more like the beginning, but for now, is there anything else?
 
Senator Skoufis: I just want to say that I have found this - I've been doing this for nine
years, third year in the Senate, and I have found this really refreshing. And I am being
perfectly honest - I have just not felt in nine years, sort of the, this sort of opportunity to
have an honest and straightforward conversation where I've felt that, you know, you all
weren't just reading from a script or trying to dance around questions. I feel really good
about what happened tonight, and maybe I'm speaking out of school with my colleagues
still on the Zoom here, but I just ask, like, can this please be the standard? This in my
mind is how it is supposed to work. I think in my mind, we were brutally honest at times
and you were forthright and when you didn't like what we were doing, you let us know
that and you, I think, you genuinely answered most, if not all, of our questions to the
extent that you could. So, I just ask that this be the standard, that's all.
 
Dr. Zucker: Thank you.
 
Melissa DeRosa: You have my word. Look, I know the position that you guys have
been put in with some of this and I know that more than anything, it's just that the press
comes to you and your constituents come to you have you have to be able to have
answers. And I've talked to Shontell and Louann and I really appreciate, for the most
part, that the legislature has been supportive throughout this process. It's been really
been hard for all of us, we're all just trying to do the right thing, but I want to continue
this dialogue in whatever format makes sense. You know, I defer to your leadership
obviously, but I'm here, I will make the time. The people around this table will make the
time and we're happy to continue this.
 
Skoufis: Ok, thank you.